Opinion
Opinion By: Jack Conway, Attorney General; Matt James, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Kentucky Correctional Institution for Women ("KCIW") violated the Open Records Act in failing to refer a requester to the official custodian of records, and in failing to provide documents it did not possess. We find that KCIW committed a procedural violation of the Open Records Act in failing to refer a requester to the official custodian of the records, but did not substantively violate the Open Records Act in failing to provide documents it did not possess.
Charon Anderson ("Anderson") submitted an open records request to KCIW on Apr. 29, 2014. Anderson requested "1 copy of my risk and needs assessment for each time the Parole Board viewed my parole. Sept. 2011; January 2012; November 2013; May 2013; April 2014." The request was stamped as received on May 1, 2014. On May 7, 2014, KCIW responded by denying the request on the grounds that information obtained by a probation and parole officer is privileged pursuant to KRS 439.510.
Anderson initiated this appeal on May 9, 2014, on the grounds that the "information is not obtained by the Probation and Parole officer," as she had not "been in contact with a Probation and Parole officer, the information is obtained by the CTO's, my case worker, here on campus." KCIW responded to Anderson's appeal on June 5, 2014. KCIW argued that Anderson had already appealed the denial of a prior request for her risk and needs assessment forms for Sept. 2011 and Jan. 2012 in 14-ORD-075, and that a request for the same documents does not restart the time for an appeal. KCIW also generally argued that the records requested were not in its possession, as the Parole Board is the custodian of the records, and its initial response mistakenly answered the substance of the request rather than referring the requester to the actual custodian. Additionally, KCIW noted that information received from the Parole Board also indicates that no risk or needs assessment was performed in May 2013 or April 2014, as the reviews did not require a new assessment. Finally, KCIW argued that risk and needs assessments are exempted from inspection as preliminary documents pursuant to KRS 61.878(1)(i) and (j) and as privileged information pursuant to KRS 61.878(1)(l) and KRS 439.510.
Regarding the risk and needs assessments for Sept. 2011 and Jan. 2012, Anderson had previously requested those records in 14-ORD-075. "Ms. Anderson now attempts to revive her time-barred appeal by submitting, or ostensibly submitting, an identical request to KCIW. She cannot circumvent the twenty day deadline set forth in KRS 197.025(3) by resubmitting the same request. . . . We must, therefore, decline jurisdiction." 14-ORD-076. Accordingly, we are precluded from addressing the merits of her request as to the risk and needs assessments for Sept. 2011 and Jan. 2012.
KCIW is not the custodian of the records requested by Anderson; the Parole Board is. "A public agency cannot afford a requester access to nonexistent records or those which it does not possess." 11-ORD-122. Accordingly, KCIW did not substantively violate the Open Records Act in failing to produce records it did not possess. 1 However, KRS 61.872(4) provides that "if the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records." In failing to refer Anderson to the proper custodian of the records, KCIW committed a procedural violation of the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Distributed to:
Charon Anderson # 177122Sarah St. ClairAmy V. Barker
Footnotes
Footnotes
1 Having found that KCIW is not the custodian of the requested records, we decline to address the merits of KCIW's other arguments.